DAVID ARISTIDE v. ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, ESTATE OF CATHERINE F. MCDONALD, GARRY BRENNAN, SR., GARRY BRENNAN, JR, and all others claiming an interest in the premises known and numbered as 23-25 Kidder Street, Quincy, Massachusetts.

MISC 16-000419

October 7, 2016

Norfolk, ss.

FOSTER, J.

MEMORANDUM AND ORDER ALLOWING ATTORNEY GENERAL'S MOTION TO DISMISS

-b-b Plaintiff David Aristide (Aristide) brought a Verified Complaint to quiet title pursuant to G.L. c. 240, §§ 6-10, seeking to establish that he is the sole owner of registered land located at 23-25 Kidder Street in Quincy (Property) as the result of an alleged agreement he entered into in 2000 with, and an unrecorded and unregistered deed executed by, purported heirs of Catherine F. McDonald (McDonald)Garry Brennan, Sr. (Brennan SR), Garry Brennan, Jr. (Brennan JR) and Darren Brennan. The Property is currently improved by a two-family residence. The Complaint named as defendants the Attorney General for the Commonwealth of Massachusetts (Commonwealth or Office of the Attorney General), the Estate of Catherine F. McDonald, Brennan SR, and Brennan JR.

At the time the Complaint was filed in this court, the Property was already in receivership pursuant to an order issued by the Quincy District Court (District Court) on March 14, 2016, which was confirmed by the District Court on April 4, 2016. The Office of the Attorney General brought an action in the District Court pursuant to G.L. c. 111, § 127I to enforce violations of the Massachusetts Department of Public Healths Sanitary Code, 105 CMR 410.00, et seq. (Code) because the condition of the Property posed a significant risk to the health and safety of abutters and the community.

In this action, the Office of the Attorney general filed a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1), 12(b)(7), and 12(b)(9). As explained below, the Motion to Dismiss is ALLOWED and Aristides Verified Complaint is DISMISSED WITHOUT PREJUDICE.

Procedural History

On July 27, 2016, Aristide filed his Verified Complaint (Compl.), along with an Ex Parte Emergency Motion to Stay Proceedings and Sale of Real Property which was heard and allowed by the court. A Temporary Restraining Order was issued on July 27, 2016, as well as a Summons and Order of Notice issued for hearing on Application for Preliminary Injunction. On August 3, 2016, the court allowed the Assented-to Motion to Change the Hearing Date for the Plaintiffs Motion for Preliminary Injunction, continuing the hearing to September 16, 2016. On August 19, 2016, the Office of the Attorney General filed a Motion to Dismiss, Memorandum in Support of its Motion to Dismiss, Affidavit of James J. Cotter, III (Cotter Aff.), and Affidavit of Kendra Kinscherf, Esq (Kinscherf Aff.). On September 9, 2016, the Office of the Attorney General filed its Opposition to the Plaintiffs Motion for Preliminary Injunction and a second Affidavit of James J. Cotter, III (Second Cotter Aff.).

The parties appeared on September 16, 2016, and at Aristides request, the hearing was continued to September 21, 2016. Aristide filed Plaintiffs Exhibits at the hearings on September 16, 2016 and September 21, 2016. Hearing on the Application for Preliminary Injunction and Motion to Dismiss was held on September 21, 2016, at which Aristide appeared pro se and was sworn. Following arguments, the motions were taken under advisement. On September 22, 2016, the court denied Aristides Motion for Preliminary Injunction, and dissolved the Temporary Restraining Order. [Note 1] On September 23, 2016, Aristide filed additional Plaintiffs Exhibits,
including an Affidavit from Mary Ellen Cronin (Cronin Aff.). This Memorandum and Order on the Office of the Attorney Generals Motion to Dismiss follows.

For purposes of this motion, the following facts are taken from the allegations in the Plaintiffs Verified Complaint, which the court accepts as true, supplemented with matters of public record and material submitted by Aristide.

1. On or about June 18, 1925, McDonald filed a petition to register title to the Property. A notice of her petition was recorded at the Norfolk County Registry of Deeds (Registry) in Book 1650, Page 83. Kinscherf Aff., Exh. A.

2. After reviewing McDonalds petition, the Land Court issued a Decree certifying that McDonald was the owner of the Property, and issued Certificate of Title No. 8681, reflecting the same. The Decree was recorded on November 7, 1925 in the Registry at Book 1672, Page 399. Kinscherf Aff., Exhs. B-D.

3. On or about November 11, 1934, McDonald died intestate. Kinscherf Aff., Exh. E.

4. Since her death, Certificate of Title No. 8681 has not been cancelled and no Transfer Certificate of Title has been issued. No other agreements or deeds transferring the Property or a portion of the Property have been filed with the Land Court or the Registry. Kinscherf Aff., ¶ 4.

5. In or about 2000, Aristide reached a written agreement (Agreement) with Brennan JR, Brennan SR, and Darren Brennanheirs of McDonald claiming an interest in the Propertyin which they agreed to convey their interest in the Property to Aristide. These heirs of McDonald then executed a deed (Deed) to Aristide for the Property. Aristide provided consideration of $240,000 in exchange for the deeded interest in the Property. Compl., ¶¶ 6-7.

6. In or about 2001, Aristide delivered the executed Deed and signed written Agreement to Attorneys Margret Cronin and Mary Ellen Cronin to file a Petition for Administration in the Probate Court on behalf of Brennan JR, in order to clear title and thereafter, record the Deed. Compl., ¶ 8; Cronin Aff., ¶ 3.

7. Attorney Margret Cronin was unable to complete the process of clearing title to the Property and recording the Deed before she passed away. Attorney Mary Ellen Cronin has since been unable to locate the original Agreement or Deed, which was in Margret Cronins possession before she died. Copies were provided to Aristide. Compl., ¶ 9; Cronin Aff., ¶ 4.

8. From about 2001 to January 2016, Aristide maintained sole possession of the Property without any contested claims of ownership from any of McDonalds heirs or anyone else. Compl., ¶ 10.

9. During this time, the City of Quincy (City) sent all notices and communications regarding the Property to Heirs of Catherine F. McDonald C/O David Aristide. Compl., ¶ 11.

10. In or around September 9, 2014, the City determined that the Property was in violation of the Massachusetts Department of Public Healths Sanitary Code, 105 CMR 410.00, et seq. (Code). The City, acting through its authorized representatives, boarded up the premises and denied Aristide entry to make repairs to resolve violations of the Code. Compl., ¶ 12; Cotter Aff., ¶ 11.

11. Around the same time in 2014, Aristide was in negotiations with a developer to build four to six condominium units on the Property, as well as in negotiations with Yale Business Capital for the intended financing of the development. Compl., ¶ 13.

12. On January 20, 2016, the Office of the Attorney General filed a Petition to Enforce the State Sanitary Code and for Appointment of a Receiver in the Quincy District Court (Petition). The Petition named The Estate of Catherine F. McDonald as owner and Garry Brennan and David Aristide as parties with a potential interest in property located at 23- 25 Kidder Street, Quincy, Massachusetts as respondents (District Court Action). Compl., ¶ 14; Kinscherf Aff., Exh. F.

13. The Petition made several allegations regarding the condition of the Property and various violations of the Code, claiming the Property was in non-compliance with the Code since July 1999. Kinscherf Aff., Exh. F, ¶ 6.

14. On March 14, 2016, in the District Court Action, the court appointed Attorney James Cotter, III (Cotter) as a Receiver and ordered him to take control of the Property, and make necessary repairs or sell the Property if the repairs were not feasible. Compl., ¶ 15; Cotter Aff., ¶¶ 5-7, Exh. A.

15. On April 4, 2016, at the request of Aristide, a second hearing regarding the Petition and appointment of the Receiver was held. Aristide appeared and was heard at the hearing. At the close of the hearing, the appointment of Cotter as Receiver for the Property was confirmed by the District Court. Cotter Aff., ¶¶ 7-8, Exh. A.

16. Thereafter, on April 4, 2016, the Receiver took possession of the Property in order to take steps necessary to protect the public health and safety by bringing the Property into compliance with the Code. Cotter Aff., ¶¶ 5-6, 9-10.

17. On May 2, 2016, after Cotter determined and reported to the District Court that it was economically infeasible to make the necessary repairs due to the substantial rehabilitation required and suggested that the Property be razed and a new two-family building constructed. A hearing was held at which Cotter requested authorization from the court to market the Property for sale. Aristide appeared and was heard at the hearing. He claimed to have taken title to the Property from Brennan JR in or around 2001, but did not provide the Deed. At the close of the hearing, the District Court authorized the Receiver to market and sell the Property. Cotter Aff., ¶¶ 14-15; Second Cotter Aff., ¶¶ 3- 4, Exh. A.

18. Cotter marketed the Property for approximately two months and received three offers. Aristide did not refer any potential buyers to Cotter or contact him with any information regarding a potential buyer. Cotter Aff., ¶ 16.

19. On June 8, 2016, a purchase and sale agreement for the Property was executed for consideration of $305,000, with a planned closing date of July 29, 2016. Compl., ¶ 15.

20. On or about June 9, 2016, Cotter filed a motion seeking authorization to accept one of the offers made on the Property. Cotter Aff., ¶ 17.

21. On June 20, 2016, a hearing on the motion to accept the offer was held and Aristide appeared. The District Court (Canavan, J.), over the objection of Aristide, approved the sale and allowed Cotters motion to sell the Property. Cotter Aff., ¶ 17, Exh. D.

22. On July 15, 2016, Aristide filed an Emergency Motion to Stay the Sale of the Property. Cotter Aff., ¶ 18, Exh. E.

23. On July 20, 2016, Cotter filed a motion to dismiss Aristide as a party-defendant from the receivership action due to his failure to produce evidence of his possession or ownership. Aristide appeared and objected at the hearing on the motion to dismiss. The District Court (Carrol, J.) allowed the motion to dismiss Aristide as a party-defendant and his emergency motion to stay the sale was rendered moot for lack of standing. Cotter Aff., ¶ 19, Exh. F.

24. Aristide has not appealed the District Courts orders allowing the sale of the Property or dismissing him as a party-defendant. Cotter Aff., ¶ 20.

25. Though a sale of the Property was originally scheduled to take place on July 29, 2016, the sale was delayed to September 30, 2016. Second Cotter Aff., ¶ 6. The Attorney General has reported that the closing has been further delayed pending the resolution of this Motion to Dismiss.

Discussion

The Office of the Attorney General has filed a Motion to Dismiss Aristides Complaint pursuant to Mass. R. Civ. P. 12(b)(1), 12(b)(7), and 12(b)(9), alleging that (1) Aristide lacked standing to bring a quiet title action, (2) the court lacks jurisdiction to decide any claim asserted against the Commonwealth based on the doctrine of sovereign immunity, (3) Aristide failed to join necessary parties, and (4) Aristides claims are the same as those asserted in the prior pending District Court Action. Each of these arguments will be addressed in turn below.

I. Lack of Subject Matter Jurisdiction

Standing is a matter of subject matter jurisdiction that may be challenged on a motion to dismiss under Mass. R. Civ. P. 12(b)(1). Ginther v. Commr of Ins., 427 Mass. 319 , 322 (1998), citing Doe v. The Governor, 381 Mass. 702 , 705 (1980). On a Rule 12(b)(1) motion, if the defendant makes a supported, factual challenge to subject matter jurisdiction, the court is required to address the merits of the jurisdictional claim by resolving any factual disputes between the plaintiff and the defendant. . . . In that process, the plaintiff bears the burden of proving jurisdictional facts to support each of the plaintiff's claims. Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n. 6 (2006).

Aristide brought a quiet title claim as to the Property under G.L. c. 240, §§ 6-10. The quiet title statute enables a party to establish the title to land situated in Massachusetts. G.L. c. 240, § 6. It requires the petitioner to assert a claim of title or interest in property and demonstrate that it is superior to other claims that may be held by any other party. Although the quiet title statute serves a similar purpose as the try title statute, the language of each statute sets forth different requirements. While the try title statute expressly requires that a petitioner have both (1) record title and (2) actual possession, the quiet title statute contains no such prerequisites.

The Office of the Attorney General argues that based on a recent decision from the Supreme Judicial Court (SJC) interpreting the try title statute (Bevilacqua v. Rodriguez, 460 Mass. 762 , 767 n. 5 (2011)) the same requirements of record title and possession in try title cases also apply in quiet title cases. In reaching its decision, the SJC relied on two quiet title cases from the early part of the twentieth century in which the court held that a quiet title claim cannot be maintained unless both actual possession and legal title are united in the plaintiff. See Daley v. Daley, 300 Mass. 17 , 21 (1938); First Baptist Church of Sharon v. Harper, 191 Mass. 196 , 209 (1906). While citing these cases to distinguish the two statutes, the SJC seemingly implicitly imposed the same two prerequisites to bringing quiet title actions as try title actions, essentially making the statutes more or less interchangeable. Though it is unclear whether the SJC in
Bevilacqua intended such a reading of the quiet title statute in its reference to Daley and First Baptist Church of Sharon, this issue does not need to be determined here. [Note 2]

Because the Property is registered land, with title conclusively established in McDonald, a new Certificate of Title would need to be issued to Aristide to confirm his interest in the Property. Since McDonalds death, Certificate of Title No. 8681 has not been cancelled and no Transfer Certificate of Title has been issued. No other agreements or deeds transferring the Property or a portion of the Property to anyone else have been filed with the Land Court or the Registry. Even assuming Aristide had record title and actual possession of the Property, Aristides valid title would be moot because the Property could still be put into receivership due to violations of the Code and sold to the court-approved purchaser even if its registered land. The District Court had proper authority to approve the sale of the Property and this court does not have the power to issue orders to the contrary.

Moreover, accepting as true Aristides claim that heirs of McDonald formed the Agreement with him in 2000 and deeded him their interest in the Property, this merely gives rise to a contract claim for which the six-year statute of limitations has run. G.L. c. 185, §§ 54, 57; G.L. c. 260, § 2. Only an estoppel argument, such as claiming that the heirs of McDonald, Brennan SR and Brennan JR, prevented him from filing an action to enforce the agreement, would toll the statute of limitations, which Aristide has not made in this action. See Pagliarini v. Iannaco, 440 Mass. 1032 , 1032 (2003) (The plaintiffs have the burden of proving that the defendant is estopped from asserting the statute of limitations as a bar to their claim. It has long been the rule that to meet this burden, a plaintiff must show that the statements of the defendant lulled the plaintiff into the false belief that it was not necessary . . . to commence action within the statutory period of limitations . . . [and] that the plaintiff was induced by these statements to refrain from bringing suit.). If Aristides contract claim is still enforceable, he may be able to recover proceeds from the sale of the Property. This court, however, is not the proper venue in which to bring such an action. Aristide must go back to the District Court or bring a separate claim against the Receiver in order to recover anything from the sale.

II. Sovereign Immunity

Furthermore, to the extent that Aristide asserts any claims against the Commonwealth, they must be dismissed based on the doctrine of sovereign immunity. The general rule of sovereign immunity provides that the Commonwealth cannot be sued unless there has been a waiver of its sovereign immunity. Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15 , 31 (2006). The rules of construction governing statutory waivers of sovereign immunity are stringent. . . . Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them. Woodbridge v. Worcester State Hosp., 384 Mass. 38 , 42 (1981) (internal citations omitted). The doctrine of sovereign immunity, however, is inapplicable where the Commonwealth is claiming ownership or control of the land at issue. Walter E. Fernald Corp. v. The Governor, 471 Mass. 520 , 528-529 (2015), citing Randall v. Haddad, 468 Mass. 347 , 358 (2014); Bates v. Director of the Office of Campaign & Political Fin., 436 Mass. 144 , 173-174 (2002). It is undisputed that G. L .c. 240, §§ 610, does not expressly waive immunity with respect to actions to quiet title. However, such a waiver is implied. Stover v. Dep't of Conservation & Recreation, No. 14-P-306, 2015 WL 3938628, * 1 (Mass. App. Ct. June 29, 2015), citing Walter E. Fernald Corp., 471 Mass. at 526 (holding that sovereign immunity does not encompass actions by which a plaintiff seeks to vindicate its ownership of specified parcels of recorded land).

In this action, the Commonwealth does not have any ownership interest in the Property, nor does it control it. Compare with Stover, 2015 WL 3938628, at * 1 (rear portion of plaintiffs property abutted a railroad right of way owned by the Massachusetts Department of Conservation and Recreation); Walter E. Fernald Corp., 471 Mass. at 521 (Commonwealth asserted ownership over same parcels of recorded land that plaintiff claimed to own). Under orders from the District Court, the Receiver, Cotter, not the Commonwealth, currently exercises control over the Property. The Commonwealths only involvement with the Property was to bring the Petition in District Court to enforce the Code. As such, all claims against the Commonwealth should be dismissed pursuant to Mass. R. Civ. P. 12(b)(1).

III. Failure to Join a Necessary Party

The Office of the Attorney General additionally contends that Aristides Complaint must be dismissed in its entirety under Mass. R. Civ. P. 12(b)(7) for failure to join all necessary parties pursuant to Mass. R. Civ. P. 19. Rule 19(a) provides that [a] person who is subject to service of process shall be joined as a party in the action if . . . in his absence complete relief cannot be accorded among those already parties. Mass. R. Civ. P. 19(a). Under Rule 19(b), if a person described in Rule 19(a)(1) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person thus being regarded as indispensable. Mass. R. Civ. P. 19(b); FRE Bldg. Co. v. JB & D Const. of NJ, Inc., No. 044124, 2005 WL 1155152, at *3 (Mass. Super. Mar. 30, 2005), citing Desimone v. Civil Serv. Comm'n., 27 Mass. App. Ct. 1177 , 1179 (1989).

Here, Aristide failed to name all the necessary parties for the relief he seeks. Though he brought this action to quiet title after the Receiver was given control of the Property and the District Court approved a sale of the Property to a third-party, Aristide did not name them as parties. Even if Aristide could obtain relief from this court contradicting the District Courts orders, because he seeks a declaration that he is the sole owner and possessor of the Property with clear title, he would need to join Cotter. In his Complaint, Aristide takes issue with the fairness of the sale, noting that the purchase price of $305,000 is detrimental to his vested interest and that the Property should actually be valued at $575,000. As previously mentioned, if Aristides contract claim, based on his Agreement in 2000, is not barred by the statute of limitations, Cotter would need to be a party in order for Aristide to dispute the valuation of the sale price or to recover any proceeds from the sale of the Property. Accordingly, this action cannot proceed in equity and good conscience without the joinder of those two indispensable parties.

IV. Prior Pending Action

Even if the doctrine of sovereign immunity was inapplicable and the action could proceed under Mass. R. Civ. P. 19(b) despite failing to join the Receiver and the approved third-party purchaser, Aristide would still be barred from pursuing his claims in this court by Rule 12(b)(9), when his attempts in the prior pending litigation in the Quincy District Court to prove sole ownership and stay the sale of the Property were denied. On a Mass. R. Civ. P. 12(b)(9) motion to dismiss, the court may not maintain an action if there is a prior pending action involving the same parties and underlying claims. M. J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337 , 339 (2004), citing Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649 , 652 (1992); Mass. R. Civ. P. 12(b)(9). On any given claim, a plaintiff may only pursue a defendant in one action. Courts do not favor the shotgun approach to litigation; nor the splitting of claims, a condition Rule 12(b)(9) seeks to prevent. Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512 , 517 (2003). Thus, the latter action is subject to dismissal on motion, if the parties and issues are identical. See Guindon Ins. Agency, Inc. v. Commercial Union Ins. Co., 15 Mass. App. Ct. 931 , 932 (1983), citing McCauley v. Sons Pharmacy, Inc., 3 Mass. App. Ct. 774 , 755 (1975).

Aristide was a party in the prior District Court litigation, which is still pending. The District Court litigation and the current action arise out of the same series of transactions relating to Aristides interest in the Property and the Receivers sale of the Property. Aristide had notice and appeared in the District Court on numerous occasions where his arguments were heard. He contended in the District Court to have taken sole title to the Property from the heirs of McDonald, the same underlying claim he asserts in this quiet title action. Aristide objected to the sale of the Property and filed an emergency motion to stay the sale in the District Court action. The court ultimately rendered his motion moot after dismissing him as a party-defendant and allowed the sale to proceed. There is no change in the relevant substantive facts between the District Court action and this action. Aristide has not appealed any of the District Courts orders, but instead, filed his quiet title claim in this court. This is something that Rule 12(b)(9) explicitly was designed to prohibit.

Conclusion

For the foregoing reasons, the Office of the Attorney Generals Motion to Dismiss is ALLOWED. Judgment shall enter DISMISSING the Verified Complaint without prejudice.

SO ORDERED.

FOOTNOTES

[Note 1] Aristide filed his Ex Parte Motion to Reconsider on September 30, 2016, and it was denied on October 6, 2016.

[Note 2] The apparent inconsistencies within the SJCs decision in Bevilacqua and the potentially problematic results of reading that decision as the Office of the Attorney General suggests, were noted in Bayview Loan Serv., LLC v. Jeudy, 23 LCR 492 , 493, n. 9 (2015) (Sands, J). This court agrees with Judge Sandss observations.